The Americans with Disabilities Act (ADA) is a civil rights law passed in 1990 that prohibits discrimination against individuals with disabilities. While the ADA’s effect has been net-positive on the lives of millions of Americans, drawbacks and unintended consequences have emerged that pose a significant risk to businesses and business owners.
Historically, ADA litigation focused on the accessibility of physical structures as “public accommodations.” Aggressive plaintiffs and their lawyers continue to push the definition of a “public accommodation.” In October, the United States Supreme Court decided not to hear a case brought by a blind individual against a vending machine operator alleging a violation of the ADA because the vending machines, which are fully automated, do not offer nonvisual means of conveying options and prices or otherwise being operated.
In addition to this attempted expansion of which physical structures constitute “public accommodations,” a new golem has arisen: whether business websites are also “public accommodations” subject to the ADA. In a landmark ruling from June, the Southern District of Florida said yes, holding that the ADA applies not just to physical structures, but to websites as well.
The impact of this ruling is already being felt as literally hundreds of lawsuits have been filed against businesses of all shapes and sizes in the Southern District alone since this verdict. While prior ADA lawsuits required one to travel to the site to demonstrate a lack of access, with this new iteration, a prospective plaintiff need only have internet access.
This new type of ADA lawsuit is also borderless, at least within the United States. Just because a business may be based in rural Virginia, customer accessibility through the internet means that Virginia business owner is at risk of a lawsuit from a South Florida individual that was unable to adequately access the Virginia business’s website.
The cost of these lawsuits (or threats of these lawsuits) are daunting. Beyond having to pay to make your website compliant (which can run thousands to tens of thousands of dollars depending on the type and scope of work needing to be performed), the ADA also provides for recoupment of the plaintiff’s attorney’s fees, which can add several thousand more dollars.
What is a business owner to do? While there is no substitute for a robust compliance program and proper coding to ensure access for all individuals, the costs may be overwhelming. However, there are still steps that can be taken to improve the accessibility of your site and minimize the risk of being sued or threatened with a lawsuit.
▪ First, educate yourself and your employees. Awareness of the issue can help head off problems and prevent your company from being caught off guard. A page-by-page review of your business’s website can be done through wave.webaim.org.
▪ Second, contact your web designer/provider to determine the accessibility of your website and what can be done to increase accessibility.
▪ Third, review your web development/maintenance agreement(s) to see what level of regulatory compliance your web company is contractually obligated to provide. If the agreement states that your site will comply with all state and federal regulations, you may be able to get your web company to resolve these issues for a reduced cost, or no charge at all.
▪ Fourth, review your insurance polic(y/ies) to determine whether you have coverage should you get served with a demand letter or lawsuit on this issue. While most policies likely will not provide coverage, cyber liability policies and general liability policies may contain language giving rise to a duty to defend from your insurance company.
Business owners must arm themselves with knowledge of this new prospective threat and begin taking immediate action to reduce their exposure. Those who remain ignorant or otherwise fail to protect themselves may find their businesses exposed during the most inconvenient of times.
Glen M. Lindsay is an associate with the South Florida law firm of Saavedra|Goodwin who focuses on commercial litigation and real estate law. 954-767-6333, www.saavlaw.com.
▪ This piece was written for Business Monday in the Miami Herald and does not necessarily reflect the viewpoint of the newspaper.
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